93 Decision Citation: BVA 93-10036
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-17 460 ) DATE
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THE ISSUE
Entitlement to an increased (compensable) evaluation for
residuals of malaria.
REPRESENTATION
Appellant represented by: Veterans Affairs Commission,
Mississippi
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
S. Smith, Associate Counsel
INTRODUCTION
The veteran performed active service from October 1942 until
December 1945.
This matter came before the Board of Veterans' Appeals (the
Board) from an October 1991 rating decision by the Jackson,
Mississippi, Regional Office (RO) of the Department of
Veterans Affairs (VA). A notice of disagreement was
received in October 1991 and a statement of the case was
issued in December 1991. The substantive appeal was
received in February 1992. The veteran testified at a
personal hearing in March 1992. A supplemental statement of
the case was issued in June 1992. The case was received and
docketed at the Board in September 1992.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that a higher evaluation is warranted
for his residuals of malaria. He asserts that he has been
treated for recurring attacks since discharge from service.
He further contends that his last malaria attack occurred in
1989 and that he takes prescribed penicillin tablets to ward
off further attacks. It is argued that the case should be
more fully developed by obtaining additional medical
evidence concerning the veteran's malaria from his private
physician, Dr. W. Mack Gorton.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104
(West 1991), following review and consideration of all
evidence and material of record in the appellant's claims
file, and for the reasons and bases hereinafter set forth,
it is the decision of the Board that the preponderance of
the evidence is against the veteran's claim for an increased
(compensable) evaluation for residuals of malaria.
FINDINGS OF FACT
1. All available, relevant evidence necessary for
disposition of the appellant's appeal has been obtained by
the RO.
2. The veteran's malaria is inactive with no clinical
evidence of residuals.
3. A relapse of malaria has not been shown for several
years.
CONCLUSIONS OF LAW
A compensable evaluation for residuals of malaria is not
warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R.
§§ 4.1, 4.2, 4.31, 4.88a, Code 6304 (1992).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board finds that the veteran's claim is well grounded
within the meaning of 38 U.S.C.A. § 5107(a). That is, we
find that he has presented a plausible claim. We are also
satisfied that all relevant facts have been properly
developed. The veteran's service medical records as well as
medical records from Dr. W. Mack Gorton are in the claims
file. There is also a record of a VA medical examination
from September 1991. No further assistance to the veteran
is required to comply with the duty to assist him as
mandated by 38 U.S.C.A. § 5107(a). We have carefully
reviewed the clinical records compiled by Dr. Gorton from
1975 to 1991. Inasmuch as these records are entirely
negative for any indication of malaria, we do not feel that
addition development is indicated. We note that these
records do confirm that penicillin was prescribed on several
occasions. However, penicillin is not a medication specific
for malaria, such as Atabrine and quinine.
Disability evaluations are determined by the application of
a schedule of ratings which is based on average impairment
of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
A 10 percent evaluation is warranted for malaria which has
been recently active, with one relapse in the past year, or
for old cases of malaria with moderate disability. A
30 percent evaluation is warranted for malaria which has
been recently active, with two relapses in the past six
months, or for old cases of malaria with anemia. The
evaluations under Code 6304 for malaria are to be assigned
on the basis of dates, frequency of recurrences, relapses,
and severity of significant residuals, if any, based on the
service medical records, or on medical evidence relating to
the period after discharge, recording sufficient clinical
findings, when considered in accordance with all other data
of record, to support the conclusion that there exists a
compensable or higher degree of disability for malaria.
Compensable ratings will not be assigned based on the
veteran's unsupported claim or statement. 38 C.F.R.
§ 4.88a, Code 6304.
A no percent (noncompensable) evaluation is warranted when
the residuals required by the schedule are not shown.
38 C.F.R. §§ 4.31, 4.88a, Code 6304.
The record reflects that a compensable rating for malaria
was effective from December 1945 until April 1949, when
compensation was discontinued.
During a personal hearing in March 1992, the veteran
testified that he had malaria attacks in 1988 and in the
spring of 1989, and that he had been treated by Dr. W. Mack
Gorton of Belzoni for his malaria. The veteran stated that
the doctor did not conduct any tests, rather he would tell
the doctor that he felt like he had malaria and then the
doctor would give him a shot.
In a letter dated in September 1991, Dr. Gorton stated that
he had treated the veteran for malaria. However, a review
of the actual medical records from Dr. Gorton from March
1975 until May 1991 are negative for any indication of
malaria. There is no clinical record of a recurrence of
active malaria. Thus, the Board finds Dr. Gorton's
September 1991 statement to be unpersuasive.
The record of the veteran's medical examination performed by
the VA in September 1991 shows that historically the veteran
had malaria in July 1944, and it had allegedly periodically
recurred with the last recurrence in 1988. The physical
portion of the examination revealed no jaundice of either
the skin or eyes of the veteran. The laboratory test
results were negative for indices of active malaria. The
recorded diagnosis was history of treated malaria with no
active evidence of the disease.
In applying the law to the facts of this case, the Board
finds that the objective evidence fails to establish that
the veteran has active malaria, has had a recurrence of the
disease within one year, or has moderate residuals
attributable to malaria. Although Dr. Gorton's records show
that he has treated the veteran for a variety of problems,
there is no evidence of treatment for malaria or residuals
thereof. In light of this evidence and the negative results
of the VA medical examination, the Board finds that the
current pathology when viewed in the context of the entire
evidentiary record does not warrant assignment of a
compensable evaluation. 38 U.S.C.A. §§ 1155, 5107;
38 C.F.R. Part 4, §§ 4.1, 4.2, 4.31, 4.88a, Code 6304.
Consideration has also been given to all potentially
applicable provisions of 38 C.F.R. Parts 3 and 4, whether or
not they were raised by the veteran, as required by
Schafrath v. Derwinski, 1 Vet.App. 589 (1991). The record
does not suggest that the disability is so exceptional or
unusual as to render impractical the application of regular
rating standards. 38 C.F.R. § 3.321(b)(1). We have also
considered the provisions of 38 C.F.R. § 4.7, but do not
find that the disability picture more nearly approximate the
criteria required for a compensable rating.
ORDER
Entitlement to an increased (compensable) evaluation for
residuals of malaria is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
GARY L. GICK H. STERLING, M.D.
HOLLY E. MOEHLMANN
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266, a
decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.